Common use of Liability of Mortgagor Clause in Contracts

Liability of Mortgagor. Upon the occurrence of an Event of Default, except as provided in this Section 9.01, Mortgagee will look solely to the Property and the security under the Loan Documents for the repayment of the Loan and will not enforce a deficiency or other judgment, order or claim against Mortgagor or any of Mortgagor’s Constituents or any partner, director, officer, trustee, shareholder, member, employee or principal of any such partner, nor any of their successors and assigns except as set forth in this Section 9.01. However, nothing contained in this Section 9.01 shall limit the rights of Mortgagee to proceed against Mortgagor and/or Liable Party, (i) to enforce any leases entered into by Mortgagor or its affiliates as tenant, guarantees or other agreements entered into by Mortgagor in a capacity other than as borrower or any policies of insurance; (ii) to recover damages for fraud or intentional material misrepresentation; (iii) to recover any Net Proceeds which have not been applied in accordance with the terms of the Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement, by Mortgagor or which, under the terms of the Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement, should have been paid to Mortgagee; (iv) to recover any tenant security deposits, tenant letters of credit or other deposits or fees paid to Mortgagor that are part of the collateral for the Loan or prepaid rents for a period of more than thirty (30) days which have not been delivered to Mortgagee upon foreclosure; (v) to recover Rents and Profits received by Mortgagor after the first day of the month in which an Event of Default occurs and prior to the earlier of (1) the date such Event of Default is cured by Mortgagor or expressly waived in writing by Mortgagee or (2) the date Mortgagee (or any other third party purchaser at a foreclosure sale) acquires title to the Property, which have not been applied to the Loan or in accordance with the Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement, to operating and maintenance expenses of the Property; (vi) to recover damages, costs and expenses arising from, or in connection with the provisions of this Mortgage pertaining to Hazardous Materials or the Unsecured Indemnity Agreement; (vii) to recover damages arising from Mortgagor’s willful failure to comply with the provisions of this Mortgage pertaining to ERISA; (viii) to recover damages arising from Mortgagor’s failure to obtain Mortgagee’s prior written consent to any subordinate mortgage financing encumbering the Property; and/or (ix) to recover damages arising from breach in any material respect of any of the representations and warranties contained in Section 2.10(c), (d) or (e) and those contained in the definition of “Special Purpose Entity” herein which are backward looking representations, to the extent such breach results in a consolidation of Mortgagor with any of its Affiliates in a bankruptcy or other insolvency proceeding. Notwithstanding anything to the contrary contained herein, in no event shall any direct or indirect partner in Borrower have any personal liability hereunder, except in its capacity as Liable Party, but in no event shall the direct or indirect partners of Liable Party have any personal liability hereunder. The limitation of liability set forth in this Section 9.01 shall not apply and the Loan will be a recourse loan in the event that (x) Mortgagor commences a voluntary bankruptcy, (y) Mortgagor, its affiliates or any of its partners, members or other constituent entities owning direct or indirect controlling interest in Mortgagor, directly or indirectly participate in a collusive involuntary bankruptcy or collusive insolvency proceeding with respect to Mortgagor; or (z) either of the Ground Leases are rejected in a bankruptcy or insolvency proceeding. The foregoing Section (z) shall not apply with respect to a Ground Lease for which a Ground Lease Amendment has been delivered to Mortgagee.

Liability of Mortgagor. Upon the occurrence of an Event of Default, except as provided in this Section 9.01, Mortgagee will look solely to the Property and the security under the Loan Documents for the repayment of the Loan and will not enforce a deficiency or other judgment, order or claim against Mortgagor or any of Mortgagor’s Constituents or any partner, director, officer, trustee, shareholder, member, employee or principal of any such partner, nor any of their successors and assigns except as set forth in this Section 9.01. However, nothing contained in this Section 9.01 shall limit the rights of Mortgagee to proceed against Mortgagor and/or Liable Party, (i) to enforce any leases entered into by Mortgagor or its affiliates as tenant, guarantees guarantees, or other agreements entered into by Mortgagor in a capacity other than as borrower or any policies of insurance; (ii) to recover damages for fraud or intentional material misrepresentation; (iii) to recover any Net Proceeds which have not been applied in accordance with the terms of the Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement, by Mortgagor or which, under the terms of the Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement, should have been paid to Mortgagee; (iv) to recover any tenant security deposits, tenant letters of credit or other deposits or fees paid to Mortgagor that are part of the collateral for the Loan or prepaid rents for a period of more than thirty (30) days which have not been delivered to Mortgagee upon foreclosure; (v) to recover Rents and Profits received by Mortgagor after the first day of the month in which an Event of Default occurs and prior to the earlier of (1) the date such Event of Default is cured by Mortgagor or expressly waived in writing by Mortgagee or (2) the date Mortgagee (or any other third party purchaser at a foreclosure sale) acquires title to the Property, which have not been applied to the Loan or in accordance with the Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement, to operating and maintenance expenses of the Property; (vi) to recover damages, costs and expenses arising from, or in connection with the provisions of this Mortgage pertaining to Hazardous Materials or the Unsecured Indemnity Agreement; (vii) to recover damages arising from Mortgagor’s willful failure to comply with the provisions of this Mortgage pertaining to ERISA; (viii) to recover damages arising from Mortgagor’s failure to obtain Mortgagee’s prior written consent to any subordinate mortgage financing encumbering the Property; and/or (ix) to recover damages arising from breach in any material respect of any of the representations and warranties contained in Section 2.10(c), (d) or and (e) and or those contained in the definition of “Special Purpose Entity” herein which are backward backward-looking representations, to the extent such breach results in a consolidation of Mortgagor with any of its Affiliates in a bankruptcy or other insolvency proceeding. Notwithstanding anything to the contrary contained herein, in no event shall any direct or indirect partner in Borrower Mortgagor have any personal liability hereunder, except in its capacity as Liable Party, but in no event shall the direct or indirect partners of Liable Party have any personal liability hereunder. The limitation of liability set forth in this Section 9.01 shall not apply and the Loan will be a recourse loan in the event that (xA) Mortgagor commences a voluntary bankruptcy, bankruptcy or (yB) Mortgagor, its affiliates or any of its partners, members or other constituent entities owning direct or indirect controlling interest in Mortgagor, directly or indirectly participate in a collusive involuntary bankruptcy or collusive insolvency proceeding with respect to Mortgagor; or (z) either of the Ground Leases are rejected in a bankruptcy or insolvency proceeding. The foregoing Section (z) shall not apply with respect to a Ground Lease for which a Ground Lease Amendment has been delivered to Mortgagee.

Liability of Mortgagor. Upon the occurrence of an Event of Default, except as provided in this Section 9.01, Mortgagee will look solely to the Property and the security under the Loan Documents for the repayment of the Loan and will not enforce a deficiency or other judgment, order or claim against Mortgagor or any of Mortgagor’s Constituents or any partner, director, officer, trustee, shareholder, member, employee or principal of any such partner, nor any of their successors and assigns except as set forth in this Section 9.01. However, nothing contained in this Section 9.01 shall limit the rights of Mortgagee to proceed against Mortgagor and/or Liable Party, (i) to enforce any leases entered into by Mortgagor or its affiliates as tenant, guarantees guarantees, or other agreements entered into by Mortgagor in a capacity other than as borrower or any policies of insurance; (ii) to recover damages for fraud or intentional material misrepresentation; (iii) to recover any Net Proceeds which have not been applied in accordance with the terms of the Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement, by Mortgagor or which, under the terms of the Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement, should have been paid to Mortgagee; (iv) to recover any tenant security deposits, tenant letters of credit or other deposits or fees paid to Mortgagor that are part of the collateral for the Loan or prepaid rents for a period of more than thirty (30) 30 days which have not been delivered to Mortgagee upon foreclosure; (v) to recover Rents and Profits received by Mortgagor after the first day of the month in which an Event of Default occurs and prior to the earlier of (1) the date such Event of Default is cured by Mortgagor or expressly waived in writing by Mortgagee or (2) the date Mortgagee (or any other third party purchaser at a foreclosure sale) acquires title to the Property, which have not been applied to the Loan or in accordance with the Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement, to operating and maintenance expenses of the Property; (vi) to recover damages, costs and expenses arising from, or in connection with the provisions of this Mortgage pertaining to Hazardous Materials or the Unsecured Indemnity Agreement; (vii) to recover damages arising from Mortgagor’s willful failure to comply with the provisions of this Mortgage pertaining to ERISA; (viii) to recover damages arising from Mortgagor’s failure to obtain Mortgagee’s prior written consent to any subordinate mortgage financing encumbering the Property; and/or (ix) to recover damages arising from breach in any material respect of any of the representations and warranties contained in Section 2.10(c), (d) ), or (e) and those contained in the definition of “Special Purpose Entity” herein which are backward backward-looking representations, to the extent such breach results in a consolidation of Mortgagor with any of its Affiliates in a bankruptcy or other insolvency proceeding. Notwithstanding anything to the contrary contained herein, in no event shall any direct or indirect partner in Borrower The Taubman Realty Group Limited Partnership have any personal liability hereunder, except in its capacity as Liable Party, but in no event shall the direct or indirect partners of Liable Party have any personal liability hereunder. The limitation of liability set forth in this Section 9.01 shall not apply and the Loan will be a recourse loan in the event that (x) Mortgagor commences a voluntary bankruptcy, (y) Mortgagor, its affiliates or any of its partners, members or other constituent entities owning direct or indirect controlling interest in Mortgagor, directly or indirectly participate in a collusive involuntary bankruptcy or collusive insolvency proceeding with respect to Mortgagor; or (z) either of the Ground Leases are rejected in a bankruptcy or insolvency proceeding. The foregoing Section (z) shall not apply with respect to a Ground Lease for which a Ground Lease Amendment has been delivered to Mortgagee.

Liability of Mortgagor. Upon the occurrence of an Event of Default, except as provided in this Section 9.01, Mortgagee will look solely to the Property and the security ------------ under the Loan Documents for the repayment of the Loan and will not enforce a deficiency or other judgment, order or claim against Mortgagor or any of Mortgagor’s =s Constituents or any partner, director, officer, trustee, shareholder, member, employee or principal of any such partner, nor any of their successors and assigns except as set forth in this Section 9.01. However, ------------- nothing contained in this Section 9.01 shall limit the rights of Mortgagee to ------------ proceed against Mortgagor and/or the Liable Party, (i) to enforce any leases entered into by Mortgagor or its affiliates as tenant, guarantees guarantees, or other agreements entered into by Mortgagor in a capacity other than as borrower or any policies of insurance; (ii) to recover damages for fraud or intentional material misrepresentation; (iii) to recover any Net Condemnation Proceeds or Insurance Proceeds which have not been applied in accordance with the terms of the Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement, Documents by Mortgagor or which, under the terms of the Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement, should have been paid to Mortgagee; (iv) to recover any tenant security deposits, tenant letters of credit or other deposits or fees paid to Mortgagor that are part of the collateral for the Loan or prepaid rents for a period of more than thirty (30) 30 days which have not been delivered to Mortgagee upon foreclosure; (v) to recover Rents and Profits received by Mortgagor after the first day of the month in which an Event of Default occurs and prior to the earlier of (1) the date such Event of Default is cured by Mortgagor or expressly waived in writing by Mortgagee or (2) the date Mortgagee (or any other third party purchaser at a foreclosure sale) acquires title to the Property, which have not been applied to the Loan or in accordance with the Loan Documents, the Guaranty, and the Unsecured Indemnity Agreement, Documents to operating and maintenance expenses of the Property; (vi) to recover damages, costs and expenses arising from, or in connection with the provisions of this Mortgage pertaining to Hazardous Materials or the Unsecured Indemnity Agreement; and/or (vii) to recover damages arising from Mortgagor’s willful 's wilful failure to comply with the provisions of this Mortgage pertaining to ERISA; (viii) to recover damages arising from Mortgagor’s failure to obtain Mortgagee’s prior written consent to any subordinate mortgage financing encumbering the Property; and/or (ix) to recover damages arising from breach in any material respect of any of the representations and warranties contained in Section 2.10(c), (d) or (e) and those contained in the definition of “Special Purpose Entity” herein which are backward looking representations, to the extent such breach results in a consolidation of Mortgagor with any of its Affiliates in a bankruptcy or other insolvency proceeding. Notwithstanding anything to the contrary contained herein, in no event shall any direct or indirect partner in Borrower The Taubman Realty Group Limited Partnership have any personal liability hereunder, except in its capacity as Liable Party, but in no event shall the direct or indirect partners of Liable Party have any personal liability hereunder. The limitation of liability set forth in this Section 9.01 shall not apply and the Loan will be a recourse loan in the event that (x) Mortgagor commences a voluntary bankruptcy, (y) Mortgagor, its affiliates or any of its partners, members or other constituent entities owning direct or indirect controlling interest in Mortgagor, directly or indirectly participate in a collusive involuntary bankruptcy or collusive insolvency proceeding with respect to Mortgagor; or (z) either of the Ground Leases are rejected in a bankruptcy or insolvency proceeding. The foregoing Section (z) shall not apply with respect to a Ground Lease for which a Ground Lease Amendment has been delivered to Mortgagee.